When the government comes knocking during a grand jury investigation, can a G-man interview one of your executives without getting consent from counsel? Last month, the U.S. District Court for the District of Maine said “Yes,” and refused to suppress a suspect’s statements in the tax fraud case against him, holding that the ex parte chat didn’t violate attorney ethics rules.

The case shows how in a federal criminal investigation, an exception to the well-known “no-contact” rule can sweep away its protection.

Tax fraud … more than skin-deep

In U.S. v. Sabean, IRS special agents interviewed a Maine dermatologist in his office, without his tax lawyer present. Almost two years later, the dermatologist was indicted for taking more than $3 million in fraudulent medical deductions, health care fraud and illegally distributing prescription drugs.

The dermatologist moved to suppress the statements he made during the IRS interview, using an argument that the court called “rather novel” — namely, that federal statute requires government lawyers to adhere to the legal ethics rules of the jurisdiction where they work, including, Maine’s version of Model Rule 4.2, and that violating the no-contact rule amounted to a violation of his Fifth Amendment due process rights, requiring exclusion of his statements.

“Authorized by law” exception

Maine’s Rule 4.2, like its Model Rule counterpart, provides that a “lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the mater, unless the lawyer has the consent of the other layer or is authorized to do so by law or a court order.”

Acknowledging that the IRS agents who interviewed the dermatologist were acting on behalf of government lawyers and knew that he was represented, the court decided that the interview fell under the “authorized by law exception.”

Comment [5] to Rule 4.2 says that ex parte “communications authorized by law” include “investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused.”

The district court judge in Sabean reasoned that the comment means that the bar of the “no contact” rule “begins when there is an ‘accused,’ thereby marking the actual commencement of criminal proceedings,” and that the pre-indictment, non-custodial interview did not require consent of the suspect’s lawyer.

The judge found additional support for this view in the Reporter’s Notes for Rule 4.2, which were prepared by the state task force that considered adoption of the Model Rules of Professional Conduct. The Reporter explained that “[t]raditional investigative activities of prosecutors are those ‘authorized … by law” for purposes of the exception to the no-contact rule.

The judge also cited a case from the Third Circuit, and cases from district courts in Pennsylvania and North Carolina, which held that pre-indictment interviews do not violate the no-contact rule.

Suppression not an “appropriate remedy”

In addition, the court said that “while exclusion may be a remedy for due process violations of interview procedures, it is not a mandatory remedy,” and suppression is to be reserved for only the “most egregious violations of the no-contact rule.”

This case simply didn’t fall into the “egregious” category, the court ruled: the interview was investigative, not prosecutorial; and it wasn’t “scripted to reveal potential trial strategy or obtain uncounseled confession.”

Following the denial of the motion to suppress, the jury trial in the case was set to begin on November 1.

We’ve mentioned before that some courts look with disfavor on lawyers helping pro se litigants by ghostwriting briefs for them to file as their own. Some opinions discussing the issue frame the conduct as lawyer deceit, as misrepresentation, or even as potential contempt of court. In a related twist, the ABA ethics committee has recently tried to issue some advice for the lawyer on the other side of the case.

Limited scope quandary

In Opinion 472, the committee addressed the obligations of a lawyer under Model Rule 4.2 (Communicating with Persons Represented by Counsel) and Model Rule 4.3 (Dealing with Unrepresented Person) when a pro se litigant is receiving limited-scope representation, a form of practice permitted under Model Rule 1.2(c). What do you do if a pro se litigant is on the other side of a case from your client, and you have reason to believe that the party has gotten some assistance from a lawyer — in writing the most recent brief, for instance. Can you contact that pro se party directly and communicate with him or her? Or is the party “represented,” requiring you to go through the lawyer?

As is commonly known, Rule 4.2 (the “no-contact” rule) says that if you “know” that a person is represented by another lawyer in a matter, you may not communicate about the subject of the representation with that person without the other lawyer’s consent. “Knowledge” can be inferred from the circumstances.

In its opinion, the committee noted the “quandary” for the lawyer on the other side of a matter where a supposedly pro se party appears to be getting or to have gotten some limited legal assistance; the committee acknowledged that the situation doesn’t fit naturally into either the traditional full-matter representation contemplated under Rule 4.2’s no-contact rule or the wholly-pro se rubric of Rule 4.3, where the lawyer can, within limits, talk to the opposing party.

“Rules of Reason”

But the Model Rules are “rules of reason,” said the committee, to be interpreted with “reference to the purposes of legal representation and the law itself.”

Therefore, the committee recommended that when a lawyer sees indications that the person has received some degree of legal assistance on a case, that the lawyer inquire whether the person is in fact represented by counsel. Such indications include briefs that appear ghostwritten. (Parenthetically, in 2007 the ABA’s committee said in passing that ghostwriting a brief for a client does not violate ethics rules, differing from the position taken by some courts. See Formal Op. 07-447 (subs. req.).)

The committee acknowledged that Rule 4.2 does not include a duty to ask whether a person is represented by counsel. But the committee noted that you cannot evade the no-contact rule by “closing [your] eyes to the obvious.” Therefore, said the committee, if you suspect a ghostwritten brief, you have to ask.

If the person “indicates that yes, a lawyer drafted documents, but is not providing any other representation,” the committee said that suggests that “the representation has concluded,” and you can talk to the person: “On aspects of the matter for which representation has been completed and the lawyer who provided limited-scope services is not expected to reemerge to represent the client, a lawyer may communicate directly with the other person.” But if not, and presumably if the situation is ambiguous, you have to reach out to the “pro se” party’s lawyer.

Whose burden?

I agree with commentator Brian Faughn that the opinion is not very helpful in shedding light in this murky area, and the burden (though it is a light one) seems to be put on the wrong participant. Why should the opposing lawyer have to inquire about the scope of the representation? If a litigant makes an informed choice to proceed with a limited-scope representation (and Rule 1.2 indeed calls for informed consent), doesn’t that include the possibility that the litigant will have to deal with opposing counsel on his or her own? For purposes of the no-contact rule, shouldn’t you be entitled to rely on the fact that no lawyer has entered an appearance on the other side?

ABA formal opinions are advisory, of course, and you should also consider the case law and ethics rules in your own jurisdiction as you attempt to navigate these waters. But this opinion’s “rule of reason” seems somewhat off-base.

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